Privatizations did not get off the ground in the Jair Bolsonaro government. For the government, one of the culprits in this situation is the Federal Audit Court (TCU), which would be taking longer than expected to analyze the projects for the sale of state-owned companies – which would end up disrupting the process. For the TCU, however, this is a problem for the government, which would send incomplete projects, jeopardizing the analysis.
A study carried out by the lawyer Ana Carolina Alhadas Valadares points out that the TCU takes, on average, 216 days (7 months) to analyze privatization processes, four months longer than the normative instruction provided by the Court itself, which establishes 90 days (3 months ).
She analyzed 26 privatization projects prepared by the Partnership and Investment Program (PPI) since 2015, which were later forwarded to the Court for a preliminary opinion. The author takes into account in her study the date of the process protocol at the TCU and its completion time. The Court, however, contests this methodology, as it considers that time only starts to count when the body has access to all the documents it has requested.
The current rule determines that the TCU technical unit has 75 days to analyze the projects. Afterwards, the process is sent to the plenary, which has 15 days for evaluation. The government is not obliged to wait for the TCU’s analysis, but prefers to wait to give more legal certainty to the operation.
“There is no clarity about the factors that cause the delay in the prior analysis of privatizations. This is because neither the current normative instruction nor the technical unit indicates the exact moment when the deadline for completion was triggered and, eventually, interrupted”, said Ana Valadares.
TCU contests studies
The Federal Audit Court (TCU) disagrees with regard to the beginning of when the time for analysis by the body of privatization processes begins. In a note, the court stated that it is necessary to consider whether the proposals already arrive with complete information to the body and, only from there, start counting the period of 90 days.
According to the TCU, in areas where there is more experience in privatization, such as energy transmission and ports, the terms, on average, are 70 days and 40 days, respectively.
In other, more complete cases, such as 5G, the court took 61 days from the time when all the necessary information had reached the body.
The dispute over the deadlines for analyzing privatizations made the court recognize that the current rule could be improved. The 90-day deadline should not be changed, but there is an intention to provide more transparency to the analysis: the deadlines would be analyzed on a case-by-case basis by the minister-rapporteur of the process, and the work schedule of the technical unit would be analyzed and approved in plenary.
The government is racing against time, for example, to sell Eletrobras until the end of Jair Bolsonaro’s term. So far, the TCU has not completed the analysis of the first stage – whose judgment should take place in March, when Minister Vital do Rêgo will return his request for visas (read more on the side).
At the end of last year, the Minister of Economy, Paulo Guedes, said that it is unacceptable that the government elected with a liberal program that includes privatizations, runs into obstacles from other branches to sell state-owned companies.
For lawyer André Rosilho, coordinator of the TCU Observatory at FGV Direito SP, it would be important that the TCU “seek to reinforce standards and with robust criteria”. “Why do certain processes advance more than others? Why do similar cases receive different treatment?”
The information is from the newspaper. The State of São Paulo.
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